SHAREEF v. PALKO

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HASAN SHAREEF, )

) Civil Action No. 18 – 1494

Plaintiff, )

)

v. ) Magistrate Judge Lisa Pupo Lenihan

)

CAPTAIN MOORE, WARDEN )

DEMORE, ASST. WARDEN ) ECF Nos. 96, 128, 131, 134, 170

FEMALE, SGT. BLUMMING, )

CAPTAIN ZENTS, SGT. WAGNER, )

WARDEN SNEDDON, MICHAEL )

SCUILLIO, JEFFREY KENGERSKI,

)

MARK BOWMAN, MAJOR

)

BATSTER, DA OFFICE, WILLIAM

FULLERTON, and OFFICER BRIAN )

PALKO, )

)

)

Defendants.

)

MEMORANDUM OPINION AND ORDER

Currently pending before the Court are Motions to Dismiss filed by the following

Defendants: (1) Batster, Blumming, Bowman, DeMore, Female, Kengerski, Moore, Scuillio,

Sneddon, Wagner and Zents (collectively “Butler County Prison Defendants”) (ECF No. 96); (2)

DA Office (“Butler County District Attorney’s Office”) (ECF No. 128); (3) Officer Brian Palko

(“Officer Palko”) (ECF No. 131); and (4) William Fullerton (“Judge Fullerton”) (ECF No. 134).

Additionally, Plaintiff has filed a Motion for Summary Judgment. (ECF No. 170.) For the

following reasons, the Motions to Dismiss will be granted only to the extent they seek dismissal

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for Plaintiff’s failure to state a claim upon which relief may be granted; and Plaintiff’s Motion

for Summary Judgment will be denied.

A. Standard of Review

The United States Court of Appeals for the Third Circuit summarized the standard to be

applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the “notice pleading” standard embodied in Rule 8 of the

Federal Rules of Civil Procedure, a plaintiff must come forward

with “a short and plain statement of the claim showing that the

pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009), a claimant must state a “plausible” claim for

relief, and “[a] claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Although

“[f]actual allegations must be enough to raise a right to relief

above the speculative level,” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007), a plaintiff “need only put forth allegations

that raise a reasonable expectation that discovery will reveal

evidence of the necessary element.” Fowler, 578 F.3d at 213

(quotation marks and citations omitted); see also Covington v. Int’l

Ass'n of Approved Basketball Officials, 710 F.3d 114, 117–18 (3d

Cir. 2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).

When considering pro se pleadings, a court must employ less stringent standards than

when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972).

When presented with a pro se complaint, the court should construe the complaint liberally and

draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v.

Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the

applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.

Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d

244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this

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is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently

alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality,

pro se litigants are not relieved of their obligation to allege sufficient facts to support a

cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.

2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).

B. Discussion

Plaintiff’s Amended Complaint is far from a model of clarity. That said, Plaintiff was

given multiple opportunities to amend his complaint and provided with instructions on how to

draft a proper complaint. See ECF Nos. 8, 20, 31, 48. Despite this, Plaintiff’s attempts at

amending over the course of an entire year were non-compliant, and, on October 3, 2019, the

Court entered an order notifying the parties that it would proceed with the Amended Complaint

that Plaintiff filed on March 12, 2019. See ECF No. 87. Notwithstanding the Amended

Complaint’s numerous pleading deficiencies, the Court is cognizant of Plaintiff’s pro se status

and the Supreme Court’s instructions that pro se individuals must be accorded substantial

deference and liberality. See Haines, 404 U.S. at 520. Therefore, to the extent that his

allegations are discernable, the Court will construe them in a way that permits Plaintiff’s claims

to be considered within the proper legal framework. See Stone v. Harry, 364 F.3d 912, 915 (8th

Cir. 2004).

1. Butler County Prison Defendants

Although Plaintiff does not identify the specific claims he is bringing against the Butler

County Prison Defendants, the only thing that is clear from the Amended Complaint is that his

claims (whatever they may be) are based on the Defendants’ involvement in the confiscation of

his property when he was processed into the Butler County Prison on August 20, 2018. Indeed,

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Plaintiff states that they refused to give back his property, falsified official documents by saying

that his property was contraband because it had “spice” on it, and then destroyed his property.

As far as the Court can tell, it appears that this property may have consisted of legal work,

jewelry and receipts.

Fortunately, in the early stages of this case Plaintiff filed a document that helps to clarify,

and provide a bit of context, as to what occurred in the Butler County Prison on August 20, 2018.

Said document is a response to Plaintiff’s motion for return of property that his attorney, Armand

R. Cingolani, III, Esq., filed on his behalf in his criminal cases on September 25, 2018. (ECF

No. 5-2); see also Commonwealth v. Shareef, CP-10-CR-1714-2016 (Butler Cty. Ct. of Comm.

Pleas); Commonwealth v. Shareef, CP-10-CR-592-2018 (Butler Cty. Ct. of Comm. Pleas).

Although Plaintiff did not provide the Court with the actual motion for return of property itself,

the response to the motion, which is dated November 20, 2018, indicates the following facts with

respect to the confiscation of Plaintiff’s property:1

On August 14, 2018, immediately prior to [Plaintiff]’s move from the Allegheny

County Jail to the [Butler County] Prison [(“Prison”)] six Prison employees were

exposed to an unknown substance, resulting in those six employees being

transferred to Butler Memorial Hospital for treatment. The Prison was placed on

lockdown status pending an investigation. During the investigation, the unknown

substance was discovered to be K2, a synthetic cannabinoid. While the exposure

method remains unknown it is believed that this substance was infiltrated into the

Prison via inmate mail or personal effects.

On August 20, 2018, [Plaintiff] was transported to the Prison from the Allegheny

County Jail. Captain Clyde Moore and Corrections Officer Mark Bowman

processed [Plaintiff] into the facility and started to search his property. While

searching [Plaintiff]’s property, both employees reported “they began to

experience burning and irritated skin and burning eyes.” These symptoms were

1 The factual assertions made in the response to Plaintiff’s motion are set forth herein only to the

extent they provide context to and help clarify Plaintiff’s claims since his allegations with respect

to what happened in his Amended Complaint are virtually incomprehensible.

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similar to the symptoms the six prior employees experienced on August 14, 2018

when they were transported to Butler Memorial Hospital.

Captain Clyde Moore sealed the property in a secure black garbage bag and

placed the sealed property bag in his secure office for when [Plaintiff] would be

released from the Prison. Captain Moore’s and Correction Officer Bowman’s

symptoms subsided to where medical treatment was not required. At that time,

Captain Moore explained to [Plaintiff] his property was deemed bio-hazard and to

contact his attorney to send in any legal work to the facility. . . .

On August 29, 2018 the Pennsylvania Department of Corrections (“DOC”) placed

the entire state prison system on an extended lockdown to combat the numerous

number of DOC employees becoming sick while being exposed to an “unknown

substance.” Multiple policy changes were enacted for the DOC varying from

inmate mail being sent off site and photocopied, legal mail opening practices, etc.

During the week of September 16-20, Warden DeMore spoke with [Plaintiff]

about his property. The Warden explained to [Plaintiff] that there were concerns

his property was contaminated and was deemed bio-hazard but was stored on-site

for when he was released from the Prison custody. Warden, Joe DeMore,

reaffirmed that Captain Moore told [Plaintiff] to have his attorney send any

pertinent legal mail to the facility. Warden DeMore explained in detail that the

jail could have sent his bagged up property out to be tested for K2 which would

result in all his property being deemed bio-hazard and consequently could be

destroyed by the haz-mat team/testing agency. [Plaintiff] thanked Warden

DeMore for not sending his property out to be tested and said he understood.

A letter was sent to the Prison on October 3, 2018 from [Plaintiff]’s attorney,

Armand Cingolani, regarding [Plaintiff]’s property. On October 4, 2018 at

approximately 1155 hours, Deputy Warden Beau Sneddon (“D.W. Sneddon”)

spoke to Attorney Cingolani on the telephone about [Plaintiff]’s property.

Attorney Cingolani indicated he was “under the impression [Plaintiff]’s property

was destroyed or lost.” D.W. Sneddon offered Attorney Cingolani the option of

having [Plaintiff] sign a release of property form and that Attorney Cingolani

could take possession of his client’s property. Attorney Cingolani refused this

option. . . .

(ECF No. 5-2, pp.1-3.) The docket sheets for Plaintiff’s criminal cases indicate that Plaintiff’s

motion for return of his property was granted by the trial court on November 26, 2018, and while

it is unknown what actually happened to Plaintiff’s property, Plaintiff complained in his original

Complaint (and his Amended Complaint) that his property was destroyed. Interestingly,

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Plaintiff’s original Complaint is dated prior to the aforementioned response to his motion

wherein it was indicated by officials at the Butler County Prison that his property was not

destroyed but rather being held pending his release since Plaintiff refused to execute an

authorization for release of his property to his attorney or other designee. Notwithstanding this

apparent discrepancy, for purposes of deciding the pending Motion to Dismiss for failure to state

a claim, this Court must accept as true Plaintiff’s allegation that his property was destroyed; but,

even assuming that was the case,2 Plaintiff has failed to state a claim upon which relief may be

granted.

a. Due Process

To the extent Plaintiff asserts liability on the part of the Butler County Prison Defendants

for the alleged confiscation/destruction of his property as a result of its alleged contamination

with K2, the United States Supreme Court has held that the concept of “due process” requires

some kind of hearing before the state can deprive a person of a protected interest. Zinermon v.

Burch, 494 U.S. 113, 126 (1990) (collecting cases). However, in cases of random and

unauthorized deprivations of property, the State cannot predict when the loss will occur and,

therefore, is unable to provide a meaningful hearing before the deprivation takes place. In

Parratt v. Taylor, 451 U.S. 527 (1981), the Supreme Court determined that, with respect to

negligent, random and unauthorized acts by state actors that result in the loss of a protected

interest, a plaintiff does not suffer a violation of procedural due process if he or she has an

adequate post-deprivation remedy. In Hudson v. Palmer, 468 U.S. 517 (1984), the Supreme

Court extended the rule in Parratt to apply to intentional acts by state actors.

2 Notably, Plaintiff does not state that Defendants failed to comply with the trial court’s order

granting the motion for return of his property.

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The Third Circuit Court of Appeals has held that a prison’s grievance procedure provides

an adequate post-deprivation remedy, see e.g., Tillman v. Lebanon County Corr. Fac., 121 F.3d

410, 422 (3d Cir. 2000), and that the existence of this post-deprivation remedy forecloses any

due process claim, Austin v. Lehman, 893 F. Supp. 448, 454 (E.D. Pa. 1995), even if an inmate

is dissatisfied with the result of the process. Iseley v. Horn, 1996 WL 510090, at *6 (E.D. Pa.

1996). In Monroe v. Beard, 536 F.3d 198 (3d Cir. 2008), which dealt with the intentional

confiscation of inmate property pursuant to official prison policy, inmates objected to a

Department of Corrections policy that allowed the confiscation of UCC-related material and

forms, which inmates had used to file fraudulent liens and judgments against officials. The

Third Circuit held that the failure to give the inmate prior notice of the seizure of these materials

did not violate their due process rights. Id. at 210. It also found that the Department afforded the

inmates a meaningful post-deprivation remedy in the form of the inmate grievance and a special

process for objecting to the seizures. Id. The Court stated: “Although the plaintiffs allege that

the defendants have not adhered to their own procedure, they have not shown that this post-

deprivation procedure was not meaningful.” Id. Likewise, in Tillman, the Third Circuit held

that the plaintiff inmate had an adequate post-deprivation remedy in the form of the prison

grievance program. 221 F.3d at 422.

Similarly, in this case, the Butler County Prison Defendants were not obligated to give

Plaintiff prior notice of the seizure of his property. Plaintiff admits that he was notified why his

property was confiscated (or destroyed), specifically because it was contaminated with “spice”,

and while he may disagree with that designation, he had a meaningful post-deprivation remedy

with regard to the confiscation/destruction of his property through the Butler County Prison’s

administrative grievance procedure, and through which he admits he sought the return of his

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property. See ECF No. 15, p.3. Plaintiff also had another meaningful post-deprivation remedy

available to him through a tort action that he could have filed in state court. See Gilmore v.

Jeffes, 675 F.Supp. 219, 221 (M.D. Pa. 1987) (citing 42 Pa. C.S.A. § 8522(b)(3)). Most

importantly, however, Plaintiff was able to move in his criminal action for the return of his

property and he fails to explain how this post-deprivation remedy was inadequate given that

public records show that he was successful. See Revell v. Port Authority of New York, New

Jersey, 598 F.3d 128, 139 (3d Cir. 2010) (“[Plaintiff] has failed to explain why New Jersey’s

state procedures to recover wrongfully seized property, such as the ability to move in the

criminal action for return of his property or the ability to file a separate action for a writ of

replevin, are insufficient.”). Consequently, assuming Plaintiff had a protected interest in the

items that were allegedly confiscated and/or destroyed, his allegations fail to state a claim for a

procedural due process violation.

Additionally, Plaintiff’s allegations also fail to state a claim for a substantive due process

violation as the confiscation/destruction of his property simply does not shock this Court’s

conscience. See, e.g., United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa., 316

F.3d 392, 399-400 (3d Cir. 2003) (“our cases have repeatedly acknowledged that executive

action violates substantive due process only when it shocks the conscience.”). See also Moore v.

Gluckstern, 548 F. Supp. 165, 167 (D. Md. 1982) (“At worst, plaintiff alleges that the items were

stolen by the guards. While such action by prison guards, if proven, would clearly be wrongful,

there is nothing about the alleged incidents that could conceivably ‘shock[] the conscience’ of

the court. Therefore, the complaint cannot be read as alleging a violation of substantive due

process rights.”). Accordingly, Plaintiff’s due process claims against the Butler County Prison

Defendants stemming from the confiscation and/or destruction of his property will be dismissed.

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b. Access to Courts

Plaintiff also alleges that he “lost [his] trial” because of the confiscation and subsequent

destruction of his legal work after he was processed into the Butler County Prison on August 20,

2018. See ECF No. 133, p.1. Plaintiff’s legal work apparently consisted of legal research and

“notes” to assist his lawyer. Id. at pp.1-2.

To establish a cognizable access-to-courts-claim, as it appears Plaintiff is attempting to

do here, a prisoner must demonstrate that the denial of access caused him to suffer an actual

injury. Lewis v. Casey, 518 U.S. 343, 351 (1996). An actual injury occurs when the prisoner is

prevented from pursuing or has lost the opportunity to pursue a “nonfrivolous” and “arguable”

claim. Christopher v. Harbury, 536 U.S. 403, 415 (2002). The prisoner must describe any such

lost claims in his complaint. Id.

As an initial matter, Plaintiff fails to specify two important pieces of information. First,

he does not identify the criminal case number for the trial that he “lost,” and second, he does not

specify what was contained within his legal research and notes that were confiscated and

subsequently destroyed and why he believes this information would have lead to a different

result for him at trial. Notwithstanding his failure to identify his criminal case number, the

Court takes judicial notice of the public dockets of the Pennsylvania state courts, and

specifically, the docket sheet for Commonwealth v. Shareef, CP-10-CR-1714-2016 (Butler Cty.

Ct. of Comm. Pleas), which shows that Plaintiff was found guilty by a jury of one count of

Possession of a Firearm Prohibited on October 22, 2018. This appears to be the criminal case

which Plaintiff refers to since it was his only active criminal case at the time for which he was

later found guilty.

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Additionally, notwithstanding his failure to specify exactly what was contained in the

legal research and/or notes that were allegedly destroyed, and why he believes that being without

that information at trial lead to his conviction, Plaintiff cannot state an access-to-courts-claim

because in this case his access to courts was satisfied as a matter of law by virtue of him being

represented by counsel at his criminal trial. See Lamp v. Iowa, 122 F.3d 1100, 1106 (8th

Cir.1997) (“For, once the State has provided a petitioner with an attorney in postconviction

proceedings, it has provided him with the ‘capability of bringing contemplated challenges to

sentences or conditions of confinement before the courts.’”) (quoting Lewis v. Casey, 518 U.S.

343, 356 (1996)); Schrier v. Halford, 60 F.3d 1309, 1313-1314 (8th Cir.1995) (having appointed

counsel is one way in which state can shoulder its burden of assuring access to the courts); Annis

v. Fayette County Jail, NO. CIV.A. 07–1628, 2008 WL 763735, at *1 (W.D. Pa. Mar 20, 2008);

Sanders v. Rockland County Correctional Facility, No. 94 Civ. 3691, 1995 WL 479445, at *2

(S.D.N.Y. Aug.14, 1995) (“By the appointment of counsel, plaintiff was afforded meaningful

access to the courts in his trial.”); Williams v. Vaughn, No. 90-5617, 1991 WL 34429, at *4

(E.D. Pa. March 12, 1991) (“Thus, [plaintiff-inmate] Williams was not actually injured by any

inability to gain access to the law library since he ultimately obtained representation.”).

For example, in Rogers v. Thomas, No. 94-4692, 1995 WL 70548, at *2 (E.D. Pa. Feb.

17, 1995), aff’d, 65 F.3d 165 (3d Cir. 1995) (Table), the prisoner therein claimed a denial of

access to courts as does Plaintiff herein. In Rogers, the prisoner’s legal papers relating to the

appeal of his criminal conviction were seized by a corrections officer. “The legal materials at

issue consisted of ‘legal research notes, court orders, affidavits, letters, and pleadings.’” Id. at

*1. The plaintiff in Rogers was represented by counsel in his direct appeal, much like Plaintiff

herein was represented by counsel in his criminal trial proceedings. The plaintiff in Rogers

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claimed the confiscation of his legal papers violated his right to access to the court, and in

rejecting this claim, the court held that despite the fact that the inmate’s legal papers were taken

by prison officials, “plaintiff was not denied access to the courts because he was represented by

court-appointed counsel, during the entire pendency of the appeal to which the legal papers

related. Thus, plaintiff was actually provided with, not denied, legal assistance.” Id. at *2. This

rule of law that providing prisoners with counsel fulfills their right of access to the courts makes

eminent sense in light of Bounds v. Smith, 430 U.S. 817 (1977), one of the landmark cases in

right of access jurisprudence, which declared that inmates’ right of access to the courts may be

satisfied by “providing prisoners with adequate law libraries or adequate assistance from persons

trained in the law.” Id. at 828 (emphasis added). Accordingly, as Plaintiff has not identified

anything in the confiscated papers that would have changed the outcome of his trial, and as he

had counsel for the criminal proceedings which he claims his alleged confiscated/destroyed legal

research related, he fails to state a claim for denial of access to the courts as a matter of law.3

2. Butler County District Attorney’s Office

The Court first notes that it is unclear whether Plaintiff intended the Butler County

District Attorney’s Office to be a named defendant in this action as it is not identified as a

3 Even if Plaintiff would have refused court appointed counsel and would have chosen to proceed

pro se in his criminal case, the fact that he had been offered legal assistance and refused such

assistance would negate any claim of denial of access to the courts. See, e.g., Degrate v.

Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (per curiam) (where pretrial detainee was offered state

appointed counsel but he subsequently rejected such counsel in order to proceed pro se, state did

not violate detainee’s right of access to the courts by hindering his access to a law library;

“having rejected the assistance of court-appointed counsel, [detainee] Degrate had no

constitutional right to access a law library in preparing the pro se defense of his criminal trial.”);

Love v. Summit County, 776 F.2d 908, 914 (10th Cir. 1985), cert. denied, 479 U.S. 814 (1986)

(state is entitled to choose whether it will meet its obligation to provide access to the courts by

providing an adequate law library or by providing legal assistance in the form of an attorney).

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defendant in Plaintiff’s Amended Complaint. See ECF No. 15. Instead, it appears that Plaintiff

named it as a defendant in his initial Complaint, see ECF No. 9, p.1, and for some reason it was

not terminated from the docket upon Plaintiff’s filing of the Amended Complaint. Indeed, in its

Motion to Dismiss the Butler County District Attorney’s Office states that it has “no rational

connection to anything mentioned in the Amended Complaint” (ECF No. 129, p.3) and this

Court agrees. Furthermore, a district attorney’s office is not a “person” that can be sued within

the meaning of § 1983. See Reitz v. County of Bucks, 125 F.3d 139, 148 (3d Cir. 1997)

(affirming district court’s grant of summary judgment in favor of defendant district attorney’s

office because it is not a legal entity for purposes of § 1983 liability). See also Lasko v.

Leechburg Police Dep’t, No. 12-1421, 2013 WL 2404145, at *4 (W.D. Pa. May 31, 2013)

(dismissing with prejudice the claims against the District Attorney’s Office because it is not a

“person” for purposes of § 1983 liability). Therefore, Plaintiff’s claims against the Butler

County District Attorney’s Office will be dismissed with prejudice.

3. Officer Palko

Although Plaintiff has put forth no coherent allegations against Officer Palko, he does use

the term “false arrest” so the Court will assume that he believes that his arrest by Officer Palko

on May 27, 2016 was unconstitutional. It appears, however, that such a claim is time-barred.

In determining the length of the limitations period, the court first looks to state law, and,

under Pennsylvania law, the applicable limitations period for civil rights actions under 42 U.S.C.

§ 1983 is two years. See 42 Pa. C.S.A. § 5524. Next, the court looks to federal law to determine

the time at which a § 1983 claim accrues, and, in Wallace v. Kato, 549 U.S. 384, 397 (2007), the

United States Supreme Court held that “the statute of limitations upon a § 1983 claim seeking

damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by

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criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal

process.”

Here, Plaintiff states, and the docket sheet confirms that Plaintiff was arrested on May 27,

2016, and he appeared for his preliminary arraignment later that same day. See Commonwealth

v. Shareef, MJ-50305-CR-338-2016. Since this occurred more than two years before he initiated

the instant case, which at the earliest was on October 20, 2018, his claim is time-barred.

Accordingly, Plaintiff’s false arrest claim will be dismissed with prejudice.

4. Judge Fullerton

Plaintiff’s claims against Judge Fullerton are unclear but it appears he complains that

Judge Fullerton was not a “neutral” magistrate judge because he either did (or maybe did not)

issue the warrant for Plaintiff’s arrest. In this regard, the Court takes judicial notice that Judge

Fullerton is a judge of Magisterial District Court 32-1-21, which is an entity of the Unified

Judicial System of Pennsylvania. See 42 Pa. C.S.A. § 301(9).

As correctly noted by Judge Fullerton in his Motion to Dismiss, the Eleventh Amendment

bars suit against him to the extent he is being sued in his official capacity as a magisterial district

court judge for the Commonwealth of Pennsylvania. In this regard, “a suit against a state official

in his or her official capacity is not a suit against the official but rather is a suit against the

official’s office. As such, it is no different from a suit against the State itself.” Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Here, a claim against

Judge Fullerton in his official capacity is really a claim against the Magisterial District Court

over which he presides; an entity of the Commonwealth of Pennsylvania that is entitled to

Eleventh Amendment immunity. See PA. CONST. Art. V, §§ 1, 7; 42 Pa. C.S. § 1511. See also

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Benn v. First Judicial Dist. of Pa., 426 F.3d 233 (3d Cir. 2005) (Holding that Pennsylvania’s

First Judicial District was “state entity” entitled to Eleventh Amendment immunity).

Eleventh Amendment immunity may be lost only in one of two ways: (1) if the

Commonwealth waives its immunity; or (2) if Congress abrogates the States’ immunity pursuant

to a valid exercise of its power. See College Sav. Bank v. Florida Prepaid Postsecondary Ed.

Expense Bd., 527 U.S. 666, 670 (1999); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240-4

(1985). Additionally, a person seeking purely prospective relief against state officials for

ongoing violations of federal law may sue under the “legal fiction” of Ex parte Young, 209 U.S.

123, 159-60 (1908), despite the text of the Eleventh Amendment. Alden v. Maine, 527 U.S. 706,

757 (1999).

No exceptions to the Eleventh Amendment immunity are applicable here. By statute, the

Commonwealth of Pennsylvania has specifically withheld its consent to be sued. See 42 Pa.

C.S.A. § 8521(b); 1 Pa. C.S.A. § 2310; see also Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.

1981). Additionally, Congress has not expressly abrogated Pennsylvania’s Eleventh Amendment

immunity from civil rights suits for damages. See, e.g., Will, 491 U.S. at 66 (“Section 1983

provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a

federal forum for litigants who seek a remedy against a State for alleged deprivations of civil

liberties.”); Quern v. Jordan, 440 U.S. 332, 341 (1979); Boykin v. Bloomsburg Univ. of Pa., 893

F. Supp. 378 (M.D. Pa. 1995) (holding that States’ immunity has not been abrogated for actions

brought under §§ 1981, 1983, 1985, and 1986), aff'd, 91 F.3d 122 (3d Cir. 1996). Finally,

Plaintiff does not seek prospective relief against Judge Fullerton, but compensatory damages

instead. As such, Eleventh Amendment immunity bars any claim he may have against Judge

Fullerton in his official capacity.

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Additionally, Judge Fullerton is entitled to judicial immunity for all acts taken in his

judicial capacity, Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (citing Mireles v.

Waco, 502 U.S. 9, 11 (1991) (per curiam)), “even if his exercise of authority is flawed by the

commission of grave procedural errors,” Stump v. Sparkman, 435 U.S. 349, 359 (1978). Indeed,

such immunity can be overcome only where a judge’s acts are nonjudicial in nature,4 or where

such acts, while judicial in nature, are “taken in the complete absence of all jurisdiction.”

Mireles, 502 U.S. at 12.

Here, Plaintiff is seeking compensatory damages against Judge Fullerton and the

allegations against him, to the extent they can be discerned, are directly connected to the actions

he took as a magistrate judge and do not suggest that he was acting in the “clear absence of all

jurisdiction.” Therefore, judicial immunity applies to bar Plaintiff’s claims.5

C. Amendment of Complaint

The court must allow amendment by the plaintiff in civil rights cases brought under §

1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless

doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors,

Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

4 “Factors which determine whether an act is a ‘judicial act’ ‘relate to the nature of the act itself,

i.e., whether it is a function normally performed by a judge, and to the expectation of the parties,

i.e., whether they dealt with the judge in his judicial capacity.’” Figueroa, 208 F.3d at 443

(quoting Stump, 435 U.S. at 362).

5 Even though Plaintiff clearly states that he seeking compensatory damages against Judge

Fullerton, it is worth noting that his claims would also be barred even if he were seeking

prospective relief because he has not alleged that a declaratory decree was violated or that

declaratory relief is unavailable. See e.g., L.B. v. Town of Chester, 232 F.Supp.2d 227, 238

(S.D.N.Y. 2002); Kampfer v. Scullin, 989 F.Supp. 194, 201-202 (N.D.N.Y. 1997); see also Jung

v. Pennsylvania, 2018 WL 3717213, at *4 (M.D. Pa. June 27, 2018); Steinberg v. Supreme Court

of Pennsylvania, 2009 WL 1684663, at *22 (W.D. Pa. June 10, 2009).

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2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the

district court must offer the opportunity to amend unless it would be inequitable or futile). While

the Court is cognizant of these holdings, it finds that allowing for amendment by Plaintiff would

be futile. A careful review of the record commands that Plaintiff, even garnering all the

liberalities that accompany his pro se status, fails to state any claims under § 1983 against the

Defendants for which relief may be granted. A separate order will issue.

Dated: March 25, 2020.

FOL

Lisa Pupo Lenihan

United States Magistrate Judge

Cc: | Hasan Shareef

NU0779

SCI Forest

P.O. Box 945

Marienville, PA 16239

Counsel of record

(Via CM/ECF electronic mail)

16

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HASAN SHAREEF, )

) Civil Action No. 18 – 1494

Plaintiff, )

)

v. ) Magistrate Judge Lisa Pupo Lenihan

)

CAPTAIN MOORE, WARDEN )

DEMORE, ASST. WARDEN )

FEMALE, SGT. BLUMMING, )

CAPTAIN ZENTS, SGT. WAGNER, )

WARDEN SNEDDON, MICHAEL )

SCUILLIO, JEFFREY KENGERSKI,

)

MARK BOWMAN, MAJOR

)

BATSTER, DA OFFICE, WILLIAM

FULLERTON, and OFFICER BRIAN )

PALKO, )

)

)

Defendants.

)

ORDER

AND NOW, this 25th day of March, 2020,

IT IS HEREBY ORDERED that the Motion to Dismiss filed by the Butler County

Prison Defendants (ECF No. 96) is granted in part and denied in part. The Motion is granted to

the extent that it seeks dismissal for Plaintiff’s failure to state a claim upon which relief may be

granted and it is denied as moot in all other respects. The claims against these Defendants are

dismissed with prejudice.

IT IS FURTHER ORDERED that the Motion to Dismiss filed by the Butler County

District Attorney’s Office (ECF No. 128) is granted and the claims against this Defendant are

dismissed with prejudice for Plaintiff’s failure to state a claim upon which relief may be granted.

17

IT IS FURTHER ORDERED that the Motion to Dismiss filed by Officer Brian Palko

(ECF No. 131) is granted and the false arrest claim against this Defendant is dismissed with

prejudice for failure to state a claim upon which relief may be granted because it is time-barred.

IT IS FURTHER ORDERED that the Motion to Dismiss filed by Judge Fullerton (ECF

No. 134) is granted and Plaintiffs claims against him are dismissed with prejudice for failure to

state a claim upon which relief may be granted.

IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment (ECF No.

170) is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court is directed to mark this case

CLOSED.

AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules

of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by

Rule 3 of the Federal Rules of Appellate Procedure.

Lisa Pupo Lenihan

United States Magistrate Judge

Cc: | Hasan Shareef

NU0779

SCI Forest

P.O. Box 945

Marienville, PA 16239

Counsel of record

(Via CM/ECF electronic mail)

18